QPS Consultants Ltd v Kruger Tissue (Manufacturing) Ltd

Permission to appeal against a discretionary decision should be refused unless there is a real prospect that, at a full hearing, the appellate court would find that the first-instance judge acted outside the generous ambit of decisions open to him. A trial judge may revisit a conclusion before the order is finally made, but may refuse to reopen an issue or admit further evidence where the material could have been presented during the trial and reopening would not serve the interests of justice. Appellate intervention is also inappropriate merely because an alternative view of factual or contractual evidence is arguable. The same restraint applies to discretionary orders for interest and costs.

Kruger Tissue (Manufacturing) Ltd applied for permission to appeal aspects of a judgment of His Honour Judge Gilliland QC, formally handed down on 5 February 2001 after a trial lasting more than 50 days. The underlying proceedings concerned professional fees claimed by QPS Consultants Ltd and a counterclaim arising from the escape of noxious liquid from a sump into a watercourse.

The proposed appeal challenged the refusal to admit further surveyor evidence on water levels, the judge’s conclusions concerning invoice 743 and a quantum meruit claim, and the orders for interest and costs. QPS was not represented and did not attend. The central issue was whether any proposed ground had a real prospect of showing that the judge’s decision was outside the proper bounds of his discretion or otherwise sufficiently arguably wrong to justify permission.

Application dismissed unanimously. Lord Justice Latham delivered the principal judgment, and Mr Justice Lloyd agreed.

1. Permission standard. On an application challenging the exercise of a first-instance discretion, the question was whether there was a real prospect of persuading the Court of Appeal, on a full hearing, that the judge had reached a conclusion outside the generous ambit of decisions open to him.
2. Further evidence and reopening an issue. A judge retains power, until the order is finally made, to revisit a conclusion contained in a circulated judgment. The decision whether to reopen an issue or permit further evidence remains discretionary. The evidence relied on here was relevant and might have affected the result, but it could readily have been presented during the very lengthy trial. The judge was therefore entitled to conclude that reopening the issue was not in the interests of justice.
3. Causation. The proposed causation argument could not assist unless there was a proper basis for challenging the refusal to admit the further evidence. Since that refusal was within the judge’s discretion, there was no real prospect of persuading the appellate court to reach a different conclusion.
4. Invoice and quantum meruit. Although the criticism of the judge’s treatment of the correspondence, including the letter of 28 November 1995, had force, the judge had heard detailed oral and documentary evidence and had evaluated the competing evidence at trial. The proposed challenge was not sufficiently arguably wrong to justify appellate intervention.
5. Interest and costs. The judge had not been shown to have exceeded the proper bounds of his discretion in making the orders for interest and costs. Permission to appeal was refused and the application was dismissed.

• Court of Appeal (Civil Division): On 9 May 2001, Lord Justice Latham and Mr Justice Lloyd refused permission to appeal and dismissed the application. The judgment is reported at [2001] EWCA Civ 785.
• First-instance judgment: His Honour Judge Gilliland QC gave judgment, formally handed down on 5 February 2001, after a trial lasting more than 50 days. The citation of that judgment was not stated.